Gh.Ahmad Malik & ors. vs State of J&K and ors.

J.P. Singh, J.—Selection and appointment of Horticulture .Development Officers in Agriculture Production and Rural Development

Department of the State Government stands quashed vide judgment dated 23.05.2002 of a learned Single Judge of this Court in thirteen writ

petitions being SWP Nos. 717/2001, 906/2001, 2243/2001, 1291/2001, 1268/2001, 820/2001, 1261/2001, 2236/2001, 2510/2001,

1950/2001, 853/2001, 818/2001 & 819/2001. Ancillary issues arising out of the selection of Horticulture Development Officers i.e. pertaining to

the operation of waiting list too were disposed of by the learned Single Judge vide His Lordship's judgments dated 10.04.2002 and 09.08.2002

passed in SWP Nos. 938/2002 and SWP Nos. 693/2002 & 682/2002 respectively. These writ petitions arose in the following factual matrix:

The Jammu & Kashmir Public Service Commission, Srinagar, issued Notification No: 17 PSC of 1997 dated 01.09.1997, inviting applications

from permanent residents of Jammu & Kashmir State for the posts of Horticulture Development Officers in Agriculture Production and Rural

Development Department in the pay scale of Rs. 2,0003,500/ against ninety seven posts, breakup whereof, is as under:

Detail of Posts

Backward Aera 19

Scheduled Trible 10

Scheduled Caste 08

L.A.C. 03

Social Caste 01

Open 56

The qualification prescribed in this notification, reads as under:

B. Sc. Agriculture with Horticulture as Major subject or all subjects.

OR

B. Sc. Horticulture. Note: (The candidates who are B.Sc. (Agri.) are required to subject proof having Horticulture one of the Major subjects or all

subjects in B.Sc. (Agri.), for determining the eligibility for the post.

It appears that while scrutinizing the application forms and other testimonials of the candidates, the Public Service Commission (hereinafter

referred as 'the Commission' for short), experienced difficulty in finding out as to whether or not the candidates possessed the requisite qualification

because the MarksCards of number of candidates possessing Degree in B.Sc. Agriculture did not indicate Horticulture as one of the subjects.

The State Government appears to have apprised the Commission with the clarification that candidates with M.Sc./B.Sc. Agriculture qualification

should get precedence and if enough candidates having this qualification were not available, suitable candidates having B.Sc. Agriculture would

also be eligible for selection. Clarification of the State Government was discussed by the Commission in its meeting held on 14.04.1999 and it was

resolved that in the given circumstances, it shall be presumed that candidates having B.Sc. Agriculture degree or having knowledge of Horticulture

are eligible for the post. It was, therefore, decided to hold a screening test of all the candidates on a syllabus pertaining to Horticulture subject. All

the candidates, appear to Have taken that test and those having passed were called for interview by the Commission.

It further appears from the records that some of the candidates, who had appeared in the screening test but without success, too had been

called for interview. The number of such candidates was thirty one (31). The Commission has taken a stand that these candidates were called for

interview because of, their superior qualification i.e. M.Sc. Agriculture and the clarification issued by the State Government, for giving preference

to such candidates.

It needs to be noticed that out of these thirty one candidates, only one (1) could find place in the final select list to seek appointment as

Horticulture Development Officer. This one officer (respondent No. 20) too, was admitted by the parties, to have died. The consideration of these

thirty one candidates by the Commission despite their having failed in the screening test may not, thus, have any effect on the selection and

appointment of other candidates if it is otherwise found sustainable.

It was in this backdrop that above mentioned writ petitions were filed by the private respondents. We will refer to the writ petitions of the

respondents to know the case set up in these petitions. All that we find from what is contained in the writ petitions is that selection of the appellants

has been questioned broadly on the following grounds:

i) The petitioners were better in merit and possessed higher qualification;

ii) The J&K Public Service Commission had not fixed any criteria for making selection;

iii) The Commission had conducted the screening test after a long period of the issuance of the notification;

iv) Thirty one (31) candidates, who had failed in the screening test, had been called for the interview and most of these candidates were those who

had done their M.Sc., after the last date of notification;

v) Most of the selected candidates were inservice candidates of the Agriculture Production and Rural Development Department, who were not

eligible because they did not possess B.Sc. Agriculture with Horticulture as one of the major subjects; and

vi) The expert in the Selection Committee was an entomologist and not an expert in Horticulture.

These grounds, thus, indicate that no specific case pointing out the ineligibility suffered by respondents individually, had been set up by the writ

petitioners. The records further testify that the writ petitioners had not supported their petition by any such document or material to prove that they

had studied Horticulture as a major subject during the course of their studies of B.Sc. Agriculture. The certificates which have been annexed by the

writ petitioners with their petition do not indicate that the petitioners had studied Horticulture as one of the major subjects. There was, thus, no

material on records to indicate that the respondents or any of them did possess the requisite qualification of B. Sc. Agriculture with Horticulture as

one of .the major subjects.

These petitions were contested only by Appellarrt Public Service Commission on the following pleas:

a. The Commission had held a Screening Test of all those candidates, whose testimonials did not indicate as to whether or not they had studied

Horticulture as one of the major subjects during their course of studies as B. Sc. Agriculture, which Screening Test had been held on a syllabus on

Horticulture subject.

b. The writ petitioners having been found eligible alongwith private respondents cannot question the validity of a Screening Test to question the

election of the respondents who are found better in merit. The writ petitioners having been found eligible alongwith private respondents on the basis

of this Screening Test, cannot have

any legitimate grievance against the selection of private respondents on the basis of merit determined at the time of interview.

c. The selection made by the expert body like Public Service Commission having technical experience and high academic qualification in the field,

cannot be interfered with in view of law laid down in 'Secretary (Health) vs. Anita Pun"" reported as 1996 (SCW) 4041.

d. Petitioners having taken chance of selection cannot turn around and call in question the process of selection in view of 'Modon Lal vs. State

o/J&K and others' reported as AIR 1995 SC 1088.

e. The Commission was represented by Sh. H.H. Tyabji as its Convener and Sh. Swaran Singh as Member, who were aided and assisted by

eminent expert from outside the State having rich experience on the subject.

The writ Court, however, focused on the eligibility issue holding appellants ineligible by observing as under:

It is, accordingly, held:

i) That the basic qualifications which were fixed, were fixed in accordance with the Rules governing the subject;

ii) That these qualifications were indicated in the Notification which was issued on 1.9.1997;

iii) That no change in the qualification(s) could be made unless and until it was noticed to the public at large and in any case, these should have been

in conformity with the Rules governing the subject;

iv) That even in the matter of permitting candidates who failed in the screening test to appear in the interview, was not justified;

v) All the aforementioned facts are good enough to conclude that the selection process was not in accordance with law. It leaves an impression

that qualifications were being fixed and refixed with a view to help candidates who could otherwise not get into service.

These judgments of the learned Single Judge have been questioned before us in twenty one appeals being LPASW Nos. 193/2002,

157A/2002, 218/2002, 201/2002; 200/2002, 292/2002, 273/2002, 272/2002, 271/2002, 237/2002, 238/2002, 270/2002, 293/2002,

235/2002, 234/2002, 236/2002, 212/2002, 426/2002, 300/2002, 233/2002 & 177/2005. All these appeals were heard together.

We propose to resolve the issues raised in these appeals by this

judgment, which would govern all the appeals.

These appeals, for facility of reference, are classified in three categories:

Category A : These are those appeals where the appellants, inter alia, plead that the judgment dated 2305.2002, which shall hereinafter be

referred as 'the main judgment', has been passed in undue haste and without application of mind, in that, the writ petitions of the respondents who

were unsuccessful in seeking selection to the posts of Horticulture Development Officers, were allowed but without either issuing any notice of the

writ petition(s) or ensuring service of notices on the appellants. The appellants allege violation of principles of natural justice. Rest of the grounds in

the appeals are similar to those raised by the other categories of appellants. These appeals are LPASW Nos. 200/2002. 292/2002, 273/2002,

272/2002, 271/2002, 237/2002, 238/2002, 270/2002, 293/2002, 235/2002, 234/2002, 236/2002 & 233/2002.

Category B : These appeals question the main judgment on the ground that the finding of the writ Court that the appellants did not possess the

essential qualification prescribed for the posts of Horticulture Development Officers is unsustainable. The appellants in these appeals submit that the

finding of the writ Court that the Public Service Commission had changed the prescribed essential qualification and erred in selecting candidates in

violation of the statutory rules, which prescribe essential qualification for a person desirous of seeking consideration for selection and appointment

as Horticulture Development Officer, is unjustified besides being unwarranted. These appellants specifically plead that they do possess the requisite

qualification of B. Sc. Agriculture with Horticulture as a major subject as prescribed by the statutory rules and that their selection and appointment

has been erroneously upset by the learned Single Judge. These appeals are LPASW Nos. 193/2002, 157 A/2002, 218/2002, 201/2002,

212/2002 & 300/2002.

Appeal (LPASW No.'300/2002) filed by the Public Service Commission against the main judgment of learned Single Judge, too, falls in this

category.

Category C : These are those appeals where appellants being in the waiting list for the posts of Horticulture Development Officers prepared as

such by the Public Service Commission against open and other reserved categories, seek their appointment as Horticulture Development Officers

by seeking direction for operating the waiting list against those vacancies which have fallen vacant because of nonjoining, resignation or otherwise

of the selected candidates. Some of these appellants seek their appointment against those vacancies, which are stated to be available with the State

Government and not yet notified for fresh selection. These appeals are LPASW Nos. 426/2002 & 177/2005.

We have heard M/s. J.S. Kotwal, D.C. Raina, Z.A. Shah, Sr. Advocates;

V.R. Wazir, K.S. Johal, Tashi Rabstan, Advocates, appearing for the appellants and M/s. M.K. Bhardwaj, Sr. Advocate; S.D. Sharma, Mrs:

Surinder Kour, Rahul Pant, Advocates; Vinod Bakshi, Dy. AG, appearing on behalf of respondents, and have gone through the written

submissions filed by Sh. Rahul Pant, Advocate.

Before dealing with the issues raised in these appeals, we would refer to the submissions made by learned counsel for the parties.

Sh. J.S. Kotwal, learned senior counsel appearing in appeals falling in category A, submits that nonissuance of notices and proper service on

the appellants in the writ petitions on which the main judgment has been delivered, renders the decision of the learned Single Judge void, and even

if considered voidable, liable to be set aside and quashed because of the grievance projected by them in their appeals. Sh. Kotwal adopts the

submissions made by Sh. Z.A. Shah, learned senior counsel appearing for the appellants who fall in Category B.

Sh. Z.A. Shah, learned senior counsel appearing for the appellants, submits that the learned Single Judge has erred in holding the Public

Service Commission to have changed the essential qualification, prescribed under the statutory rules governing the service, for the posts of

Horticulture Development Officers while making selection of the appellants, in that, the learned Single Judge has proceeded on a wrong premise in

treating the appellants to be those who did not possess the requisite qualification of B. Sc. Agriculture with Horticulture as major subject. Learned

counsel adds that the learned Single Judge has misdirected himself in omitting to consider as to whether or not there was any material on records

justifying His Lordship's conclusion that the appellants did not possess the requisite qualification. Learned counsel submits that the learned Single

Judge appears to have been influenced by the clarification issued by the State Government and taking a view, which the facts on records did not

justify. Sh. Shah submits that the procedure adopted by the Commission was the right course, which in the circumstance of the case, was required

to be adopted in view of the similar qualification being possessed by the majority of the candidates who had applied for the posts and whose

marks cards did not indicate as to whether or not they had studied Horticulture as one of the major subjects during their course of studies in B. Sc.

Agriculture.

Sh. D.C. Raina, learned senior counsel appearing for the J&K Public Service Commission while supporting the stand taken by the

Commission, too, has made submissions similar to those which were advanced by Sh. Z.A. Shah. Sh. Raina justified the procedure followed by

the Commission and additionally urged that all the candidates having taken and cleared the screening test without any objection, and opted to

appear in the interview without any reservation or demurrer, cannot turn around to question the procedure prescribed by the Commission to

determine their eligibility, when they were

adjudged lower in merit to the selected candidates. He refers to 'Modem. Lal vs. State of J&K and ors' reported as AIR 1995 SC 1088 to

support his submissions.

Sh. M.K. Bhardwaj, learned • senior counsel appearing for the writ petitioners/respondents, on the other hand, supports the judgment of

the learned Single Judge by submitting that the Commission had committed an illegality apparent on the face of records in accepting the clarification

of the State Government and acting on the changed qualification, which course was not permissible, in that, the Commission being the selecting

authority, did not possess any authority or power to change the eligibility criteria prescribed by the rules framed under Section 124 of the

Constitution of Jammu & Kashmir.

Mrs. Surinder Kour, learned counsel appearing for the writ petitioners, too, has raised similar submissions in support of the judgment. She

submits that the writ petitioners were better in merit and possessed higher qualification and on that score the writ petitioners were entitled to be

selected for the posts of Horticulture Development Officers. She submits that the selection and appointment of the appellants is illegal because the

expert in the panel of the selection committee was not an expert in Horticulture but instead was an Entomologist, who is expert in the subject

dealing with insects.

Sh. Rahul Pant has filed written submissions reiterating the submissions made by learned counsel for the writ petitioners. He has also

questioned the competence of the expert to be an expert in Horticulure.

M/s. V.R. Wazir, K.S. Johal, Mrs. S. Kour, Advocates, & J.S. Kotwal, Sr. Advocate, while projecting the case of those who are in the

waiting list, submit that the State Government has not yet issued any fresh notification and number of posts of Horticulture Development Officers,

are available so the candidates in the waiting list can be adjusted against available vacancies other than those against which selection and

appointments have been made. Some of the learned counsel submit that their clients have been placed higher in the waiting list and because of the

nonjoining, resignation etc., of the selected and appointed candidates, they are entitled to be considered for appointment against those vacancies

because they had approached the court within the validity period of one year of the waiting list, within which period the posts had fallen vacant.

These learned counsel refer to Rule 57 of the Jammu and Kashmir Public Service Commission (Business and Procedure) Rules, 1980, to seek

operation of waiting list by the State Government.

Sh. Vinod Bakshi, learned Dy. Advocate General appearing for the State, however, objects to the operation of waiting list after a period of

one year. Learned counsel refers to 'State of Punjab vs. Raghu Lal Chand and others' reported as AIR 2001 SC 2900, to urge that the select

panel has ceased to exist after the expiry of one year and, therefore, regardless of the writ petitioners having approached this Court within a period

of one year, they are not entitled

to the operation of the waiting list.

We will first deal with the issue as to the nonissuance/nonservice of requisite notice/s on the appellants falling in categoryA appeals and its

effect on the impugned judgment.

Writ petition, SWP No. 717/2001, appears to have been filed on 12.04.2001, when notices returnable after eight weeks were ordered to be

issued to the respondents. These notices, according to the J&K High Court Rules and the prevalent practice, were such notices which would be

issued prior to the formal admission of a writ petition to Hearing. These notices appear to have been served only on some of the respondents,

whereas notices issued to respondent Nos. 6,""7 to 13, 14, 15 to 19, 21 to 28, 30, 32 to 35, 3743, 45, 46, 49, 50, 52, 54, 56 to 59, 61, 62, 64

to 75, 81 to 88, 90 to 93, 97, 99 to 102, (numbering seventy five in total) could not be served. It, thus, appears that majority of the respondents

barring few could not be served by the mode adopted by the Registry. The case was thereafter taken up on 24.08.2001 when the following order

was passed by learned Single Judge:

Learned counsel for petitioners have submitted that they be permitted to serve the unserved respondents by substitute service. Their prayer is

allowed and they are directed to deposit the publication charges within a week in the Registry of this court. The respondents shall be served by

publication in 'State Times' newspaper.

List after service.

The records of the Court indicate that publication charges required to be deposited in terms of order dated 24.08.2001, 'were not' so

deposited by the writ petitioners. Learned counsel for the writ petitioners, the record shows, was intimated about the nondeposit of the publication

charges by her. It further appears that without effecting service on the affected respondents either by ordinary mode of service or by substituted

service as directed vide order dated 24.08.2001, the main writ petition i.e SWP No. 717/2001 was taken up for consideration initially on

22.03.2002 and thereafter ordered to be listed from time to time alongwith other connected cases. The main writ petition, in which notices had

been issued only for admission of the writ petition, does not appear to have been admitted to Hearing. Fresh notices, indicating final disposal of the

writ petition by the Court, too were not issued to the respondents, appellants in these appeals. The main writ petition along with connected writ

petitions came to be decided on 23.05.2002 (though incorrectly recorded in the judgment as 23.05.2001), whereby the selection of Horticulture

Development Officers made by the Public Service Commission was quashed.

It is no longer res Integra that a Court may resort to substituted service if it is found by it that service by ordinary mode of service is not

possible. Although the Code of Civil Procedure may not be applicable to proceedings in

Extraordinary civil writ jurisdiction of the Court, yet the principle underlying the provisions of the Code is applicable in these proceedings. Order V

Rule 20 of the Code of Civil Procedure enunciates that resort to the mode of substituted service may be had if the Court is satisfied that service of

the respondents is not possible by ordinary mode of service. Service by substituted mode may, thus, be permissible only if such satisfaction, as

contemplated by Order V Rule 20 of the Code of Civil Procedure, is recorded by the Court.

We do not find any such satisfaction to have been recorded in order dated 24.08.2001 and nor any such satisfaction could have been so

recorded because neither any difficulty existed nor had it been so projected by the writ petitioners. Order dated 24.08.2001 of the writ Court is,

thus, unjustified and unwarranted.

Substituted service, even if effected in the case, would not, thus, constitute proper service on the respondents, who have projected prejudice

because of the nonservice of notices by the writ Court on them before quashing their selection as Horticulture Development Officers.

Nonpublication of notices because of the failure of the writ petitioners to deposit publication charges goes a long way in establishing that the

unserved respondents have been deprived of their right of hearing.

We are, thus, satisfied that principle of audi alterm partem stands violated and the appellants have been condemned unheard.

A judicial determination, hit by 'Audi alteram partem' would not, thus, be a valid determination.

This should have been sufficient for us to set aside the impugned judgment, directing remand of the case to the writ Court for fresh disposal.

We, however, do not adopt this course, for, we do not want the parties to be sent to the writ Court for fresh adjudication, because we are

conscious of the fact that delay in final adjudication of the rights of the parties is not conducive to the justice delivery system. We, therefore, would

like to consider as to whether or not the remand of the case would serve any useful purpose to the parties.

In order to do that exercise, we would take the appeals falling in category B.

The learned Single Judge appears to have been influenced by the clarification issued by the State Government permitting the Public Service

Commission to give preference to those who possessed M.Sc./B.Sc. Agriculture and if enough candidates having this qualification were not

available to consider suitable candidates having B. Sc. Agriculture for their selection as Horticulture Development Officers, in presuming and

coming to the conclusion that the appellants (respondents in the writ petition), did not possess the requisite qualification of B. Sc. Agriculture with

Horticulture as one of the major subjects.

No exercise appears to have been undertaken by the learned Single

Judge in finding out as to what was meant by the prescribed qualification ""B. Sc. Agriculture with Horticulture as one of the major subjects"" and the

expression 'Horticulture as one of the major subjects'. Learned Single Judge appears to have adopted a shortcut in relying on the clarification of the

State Government and additionally by the holding of a screening test by the Public Service Commission in finding out the knowledge of the

candidates in the subject of Horticulture, to come to the conclusion that the respondents did not possess the requisite qualification and it was

because of their nonpossessing of this qualification, that the screening test had been conducted by the Public Service Commission.

The conclusion reached at by the learned Single Judge does not appear to us to be correct on facts. This is so because the certificates

produced by the appellants alongwith their memo of appeals do indicate that they had studied Horticulture as one of the subjects during their

course of studies of B. Sc. Agriculture. We will like to refer to some of these certificates, which read thus:

S.K. UNIVERSITY OF AGRICULTURAL SCIENCES & TECHNOLOGY JAMMU AND KASHMIR.

Name Gh. Ahmad Malik

Course No. Course Title

PP 211 Plant Pathogens

Hort 211 Introductory Horticulture

Hort 312 Orchard Mng. & Nursery Husbandry

Hort 414 PomologyII

Hort 415 Olericulture

Farm 415 Farm Practicles (Ag./Ht.)

Hort 426 Floriculture, Land Scapping & Medicinal Plants

Hort 427 Fruit and Vegetable Preservation

GURU NANAK DEV UNIVERSITY Name Rinjpal Singh Horticulure II

Horticulture (One elective subject)

AGRA UNIVERSITY. Name Riaz Ahmed Shah Agricultural Chemistry Horticulture Plant Pathology

SHEREKASHMIR UNIVERSITY OF AGRICULTURAL SCIENCES & TECHNOLOGY REGIONAL RESEARCH STATION &

FACULTY OF AGRICULTURE WADURA (SOPORE) KASHMIR

Name Mohd Ramzan War

EOT 122 Plant Physiology

HORT211 Introductory Horticulture

HORT312 Orchard Management & Nursery Husbandry

HORT323 Pomology I

HORT414 Polmology II

HORT415 Olericulture

HORT426 Floriculture, Land Scapping & Medicinal Plants.

GURU NANAK DEV UNIVERSITY Name Javeed Ahmad Bhat

A. Soil201 Introduction to Soil Fertility

A. Ent201 Entomology Introduction

A. I.F201 Introductory Land Scaping & Floriculture

A. Hort201 Fruit Growing

SHEREKASHMIR UNIVERSITY OF AGRICULTURAL SCIENCES & TECHNOLOGY REGIONAL RESEARCH STATION &

FACULTY OF AGRICULTURE WADURA (SOPORE) KASHMIR

Name A.H. Kachoo

Hort211 Introductory Horticulture

Hort312 Orchard Management & Nursery Husbandry

Hort325 Pomology I

Hort414 PomologyII

Hort415 Olericulture

Hort426 Floriculture, Land Scapping & Medicinal Plants

Hort427 Fruit & Vegetable Preservation

SHEREKASHMIR UNIVERSITY OF AGRICULTURAL SCIENCES & TECHNOLOGY REGIONAL RESEARCH STATION &

FACULTY OF AGRICULTURE WADURA (SOPORE) KASHMIR

Name AkbarUdDin

Hort121 Introductory Horticulture

Hort312 PomologyI

Hort323 PomologyII

Hort415 Olericulture

Hort416 Floriculture, Medicinal Plants & Land Scaping

Hort424 Orchard Management & Nursery Practices

SHEREKASHMIR UNIVERSITY OF AGRICULTURAL SCIENCES & TECHNOLOGY REGIONAL RESEARCH STATION &

FACULTY OF AGRICULTURE WADURA (SOPORE) KASHMIR

Name Gulam Qadir Bhat

Hort121 Introductory Horticulture

' Hort312 PomologyI

Hort323 PomologyII

Hort415 Olericulture

Hort416 Floriculture, Medicinal Plants & Land Scaping

Hort424 Orchard Management & Nursery Practices

SHEREKASHMIR UNIVERSITY OF AGRICULTURAL SCIENCES & TECHNOLOGY SRINAGAR

Name Manzoor Ahmad Wani

Horticulture

Fertilizer & Manures

Soil I Bio Chemistry

Soil II Plant Pathology

Introductory Entomology

Orchard Management, Nursery

Plant Breeding & Cytogenetics Soil III Olericulture Pomology & Fruit Physiology.

S.K. UNIVERSITY OF AGRICULTURAL SCIENCES & TECHNOLOGY JAMMU AND KASHMIR

Name Fafiq Khan

Hort211 Introductory Horticulture

Hort312 Orchard Management & Nursery Husbandry

Hort325 Pomology I

Hort414 Pomology II

Hort415 Olericulture

Hort426 Floriculture, Land Scapping & Medicinal Plants

Hort427 Fruit & Vegetable Preservation.

We find from these certificates that these appellants are shown to have studied such subjects, which have not been disputed by the parties

appearing before us to be the subjects which pertain to Horticulture. We further find that the appellants had studied Horticulture as one of the

subjects in number of semesters during the course of their studies of B. Sc. Agriculture. We fail to appreciate as to how can these appellants, who

have studied Horticulture as one of the subjects during several semesters in the course of B. Sc. Agriculture, be held to be ineligible for the posts of

Horticulture Development Officers. Merely because a clarification had been issued by the State Government to the Public Service Commission to

give preference to M. Sc./B. Sc. Agriculture and in case candidates possessing B. Sc. Agriculture are not available to consider for the posts of

Horticulture Development Officers, would render these, otherwise eligible, appellants ineligible unless their eligibility was determined on merits and

that too on a proper case having been set up by the writ petitioners pointing out their individual ineligibility to compete for the posts of Horticulture

Development Officers.

From the conspectus of facts appearing from the records, it come out that the majority of the candidates including the petitioners did not

possess requisite certificates indicating their having studied Horticulture during their course of studies of B. Sc. Agriculture. It was brought to our

notice that in some Universities, there was no practice of indicating in the markssheets as to whether or not the candidates had studied Horticulture

during their course of studies of B. Sc. Agriculture and as to whether or not the Horticulture was one of the major subjects during their course of

studies. It further appears that both sets of candidates i.e. successful and unsuccessful candidates, were not possessed of such certificates

indicating their having studied Horticulture as one of the subjects which appears to have necessitated the holding of screening test by the

Commission to find out as to whether the candidates had studied Horticulture as major subject during their course of studies of B. Sc. Agriculture.

It cannot be lost sight of that all the candidates had taken the screening test without any objection or reservation and all those who had cleared

the screening test after having been found to have studied Horticulture as major subject on the syllabus prescribed by the Commission for having

the requisite knowledge of Horticulture, had appeared in the final selection process of interview. The unsuccessful candidates cannot, thus, be

permitted to criticize and take advantage of the course adopted by the Commission in holding screening test for determining their knowledge of

Horticulture. Those who had remained unsuccessful in the screening test, have not questioned the selection and appointment of the appellants as

Horticulture Development Officers. The writ petitioners, in our view, do not have any legitimate grievance to the holding of screening test, which

the Commission had undertaken because it was unable to find out from the testimonials of the candidates as to whether or not they had studied

Horticulture as one of the major subjects during their course of studies.

We have already indicated earlier that the writ petitioners had not indicated as to which of the appellants (respondents in the writ petitions) did

not possess the requisite qualification of B. Sc. Agriculture with Horticulture as one of the major subjects. There being no other material on records

to infer that the appellants did not possess this qualification; and as against this the production of certificates by the appellants with their appeals

showing their having studied Horticulture in majority of the semesters during the course of their studies of B. Sc. Agriculture, constrains us to upset

the finding of learned Single Judge that the Commission had changed the prescribed essential qualification and selected those candidates who did

not possess this qualification. On the basis of material on records, we are unable to uphold the finding of the learned Single Judge that the

appellants did not possess the requisite qualification of B. Sc., Agriculture with Horticulture as one of the major subjects.

We are not impressed by yet another submission of learned counsel for respondentswrit petitioners that the Selection Committee did not have

the requisite expert on its select panel when the interview, regarding candidates belonging to the General Category, was conducted. The writ

petitioners had pleaded that while interviewing the candidates belonging to the Reserved Category, the expert was an Horticulturist from Himachal

Pradesh Agriculture University, Palampur, whereas in case of General Category candidates, the expert was an Entomologist and should have been

an expert of Horticulture. No specific case has been set up questioning the competence of Dr. Kashyap, to be an expert on the select panel. As

against this, the Commission had taken a specific stand that the select panel was aided and assisted by well reknowned and eminent expert from

outside the State having vast experience on the subject. This specific stand of the Public Service Commission has gone unrebutted and nothing has

been brought on records either before the writ Court or before us to suggest as to how Dr. Kashyap from Himachal Pradesh Agriculture

University, Palampur, was, in any way disqualified to be the expert in the subject. This apart, the expert whose competence was questioned by the

petitioners was not made a party respondent to the writ petition. The petitioners cannot, thus, succeed on mere bald assertion that Dr. Kashyap,

working in the Himachal Pradesh Agriculture University, Palampur, a well known University on Agriculture, suffered any disqualification to be an

expert on the select panel.

To question the expertise of a person on a particular subject and to seek determination thereof, a specific case supported by requisite material

is required to be set up by a suitor who approaches the Court to seek such adjudication. The expert, whose expertise is questioned, is necessarily

required to be made a party respondent, for, any determination in this regard, would affect the reputation, competence and status of such person

who is selected to be an expert on the select panel of a selection committee. The petitioners having failed to set up any such case, cannot, in our

opinion, succeed in the writ petition even if the same was to be tried afresh on the existing material.

For what has been stated above, we are of the view that no useful purpose would be served in directing the remand of the case to the writ

Court because the petitioners have failed to set up any specific case before the writ Court in regard to the alleged disqualification of the appellants.

We, thus do not find any material to support the findings of learned Single Judge, which are, accordingly, upset.

Category C. Appeals falling in this category arise out of two judgments of learned Single Judge passed in SWP Nos. 693/2002 & 682/2002

and SWP No. 938/2002 on 09.08.2002 and 10.04.2002 respectively. Two orders passed by the learned Single Judge dealing with the similar

issue, are reproduced hereunder for reference:

SWP No. 693/2002 & SWP No. 682/2002.

The petitioners make a prayer that the waiting list be operated upon. For this, reliance is being placed on a decision of this Court given in

Meenakshi Bandral and another vs. State of J&K and ors i.e. Service writ petitions No. 1890/2001 and 2077/2001. In the aforementioned cases,

while taking note of the decision given by the Supreme Court reported as Virinder S. Hooda and ors vs. State of Haryana and anr, 1999 (3) SCC

696, and a latter decision of the Supreme Court reported as State of U.P. vs. Ram Swrup Saroj, AIR 2000 SC 1097, a direction was given to the

respondents to operate the waiting list. So far as the legal position is concerned there can be no dispute. However, on facts it is submitted that the

selection of Horticulture Development Officers qua whom waiting list was sought to be operated upon, was quashed by this Court. Against this

decision, a LPA has been preferred and the operation of the judgment in writ petition has been stayed and interim directions have been given to not

to operate the waiting list.

In this situation, these petitions are disposed of with a direction that the outcome of the LPA would abide the events. In case the appointments are

found to be invalid, then the question of operating the waiting list, does not arise. In case the judgment given in the writ petition is reversed, then the

consequence which may ensure on account of the decision given in SWP No. 1890/2001 and the observations made by the Supreme Court in the

two cases (supra) and which have been noticed in"" this case, will ensue.

With these observations, these petitions are disposed of."" ""SWP No. 938/2002 dated 10.04.2002.

Short submission made by the learned counsel for the petitioner is that waiting list prepared be made operative. This waiting list is part of annexure

D. It is the grievance of the petitioner that some candidates who came to be appointed out of regular select list have since left the service.

Vacancies have become available. Select list was issued on 19.03.2001. It is normally to operate for one year.

On the asking of the Court Mr. Baldev Singh has put in appearance on behalf of the respondents.

This petition is disposed of with the following directions:

(i) that if the waiting list has been made operative then time frame for which this waiting list has to remain in force be intimated to the petitioners.

(ii) that appointment out (of) waiting list would be made strictly in the order of merit as given in the waiting list.

(iii) that if the petitioners are high up, their claims be considered.

(iv) let issue be considered and decided within a period of three months from the date copy of the order passed by this Court is made available by

the petitioners to the respondents and also their counsel.

Disposed of as such."" 49. We will now refer to the issue regarding the operation of waiting list in view of the contentions raised before us, for and

against the operation of the waiting list. Operation of waiting list is governed by Rule 57 of the Jammu and Kashmir Public Service Commission

(Business and Procedure) Rules, 1980, which for facility of reference, is reproduced hereunder:

The decisions of the Commission for making appointment by direct recruitment shall, subject to the provisions of Rule 9 and 10, be signed by

all the members. The recommendations of the Commission shall be communicated to the Government by the Secretary.

The recommendations shall be valid for a period of one year from the date they are communicated to the Government. The validity period of one

year can, however, be extended for a further period of six months on specific request of the Government if the request for such extension is made

before the expiry of the validity of the panel.

Provided that waiting list of candidates may be drawn up by the Commission and communicated to the Govt. alongwith the original

recommendations, to the extent to be determined by the Commission in each case.

After the recommendations for direct recruitment as communicated to the Govt. the Secretary shall intimate individually to the candidates

selected/recommended against clear vacancies the fact of their names having been recommended to the Govt. for appointment. This shall be in

Form No. 6.

Secretary shall, thereafter, make public the select list and the waiting list by affixing a copy of the same on the Notice Board of the Commission

and also by publishing in the Government Gazette. This shall be in form No. 7.

In view of the clear language of the Rule, we, thus, conclude that the validity of the waiting list is one year extendable by another six months.

The question as to whether or not the vacancies other than those notified by the Selection Authority, could be utilized for operating the waiting

list, is no longer res Integra and needs to be considered in the light of judgments delivered by the Hon'ble Supreme Court of India in 'State of U.P.

vs. Ram Swarup Sarqf, reported as AIR 2000 SC 1097; and 'Prem Singh and others vs. Haryana State Electricity Board and others' reported as

(1996) 4 SCC 319.

The candidates in the waiting list do not have any enforceable right to seek adjustment against those vacancies other than those for which they

had competed in the selection. The selection process, by way of advertisement, starts against clear vacancies and also, if so notified against

anticipated vacancies but, in no case, against future vacancies. If advertisement is for a certain number of posts only, the State cannot make more

appointments than the number of posts advertised even though a select list of candidates more than the notified vacancies is prepared. This broad

principle is subject to only a few exceptions where the State may resort to filling up vacancies other than those which are notified but it has to be on

the basis of some State policy or enforceable order in this direction. Neither any State policy nor any enforceable order has been brought to our

notice on the basis whereof the candidates falling in the waiting list may seek their claim for vacancies which were not notified by the Public Service

Commission.

We, thus, hold that the candidates in the waiting list do not have any right to seek appointment against future vacancies/available vacancies.

This is additionally so because adjustment of candidates in the waiting list against these vacancies would deprive those who are eligible to compete

against these posts, thereby violating Articles 14 & 16 of the Constitution of India.

The only question which remains to be determined, is as to whether the candidates falling in the waiting list could be adjusted against those

notified vacancies which remained unfilled or were vacated because of the death, non joining or resignation of the selected candidates.

Sh. Vinod Bakshi, learned Dy. AG, refers to 'State of Punjab vs. Raghbir Chand Sharma and another1 reported as AIR 2001 SC 2900, to

urge that the resignation from a post would result in keeping that post open for being filledup in the next selection and that the candidates in the

waiting list cannot be adjusted against such post. Sh. Bakshi urged that because one year from the date of appointment and selection has since

elapsed so the State cannot be compelled to appoint these candidates after such a long time.

We do not agree with Sh. Bakshi for two reasons:

The judgment cited by learned counsel refers to a case where the life of a select panel ceases to exist after the appointment of first person in the

select panel. The ratio of the judgment cannot be applied to the facts of present case because it is admitted by the parties that life of the select

panel continues to remain in operation for one year extendable to another six months on the requisition of the State Government; and

A litigant cannot be compelled to suffer because of the delay in disposal of his lis. It goes without saying that inaction by a judicial authority

should not prejudice anyone.

This apart, it has been held in 'State of U.P. vs. Ram Swarup Sarof (supra) that a party who approaches the Court within the life of the waiting

list cannot be deprived of his right to seek operation of the waiting list because of the nonconsideration of his case within the validity period of the

waiting list.

We, thus, hold that all those vacancies, which have fallen vacant because of the nonjoining, death or resignation of the appointees within a

period of one year from the date of the recommendation by the Public Service Commission for appointment, shall become available to the

candidates in the waiting list in the order of merit against their respective categories.

For what has been said above, we allow these appeals, set aside the impugned judgments and direct the State Government to operate the

waiting list of Horticulture Development Officers against those vacant vacancies, which have become available within a period of one year from the

date when the recommendation for appointments was made by the Public Service Commission to the State Government, against respective

categories where the vacancies have arisen because of death, nonjoining and resignation of the selected and appointed Horticulture Development

Officers, within a period of four weeks.

There will be no order as to costs.

A copy of the judgment be placed on the file of each appeal.